February 12, 2012

"California's death penalty law: It simply does not work"

The title of this post is the headline of this op-ed in the Los Angeles Times, which is authored by Ron Briggs, a member of the Board of Supervisors in El Dorado County. Here is how it starts and ends:

In 1977, my dad, former state Sen. John Briggs, my brother-in-law and I got together to discuss California's death penalty. We agreed it was ineffective and decided a ballot initiative was needed to expand the number of murder categories eligible for capital punishment. We felt such changes would give prosecutors better tools for meting out just punishments, and that a broadened statute would serve as a warning to all California evildoers that the state would deliver swift and final justice.

We thought we were creating a national model for capital punishment. On a shoestring budget we collected more than 1 million signatures to put the proposition on the ballot. Half the signatures came via first-class business reply mail, which my wife, Kelly, and I manually processed. We didn't have laptops or self-adhesive stamps then, although we did have a bomb scanner, which we'd been trained to use by the FBI after they discovered a terrorist plot to kill my dad.

On Nov. 7, 1978, California voters passed the Briggs initiative on the death penalty. Back then, my future brother-in-law was Dad's district chief of staff and I proudly served as my father's personal aide. Today Dad is retired, my brother-in-law is a California Superior Court judge and I am in my second term as a county supervisor representing rural District IV in the county of El Dorado, east of Sacramento.

Recently, the three of us sat together under a rose trellis in the quiet cool of morning to talk politics. Each of us remains a staunch Republican conservative, but our perspectives on the death penalty have changed. We'd thought we would bring California savings and safety in dealing with convicted murderers. Instead, we contributed to a nightmarish system that coddles murderers and enriches lawyers. Our initiative was intended to bring about greater justice for murder victims. Never did we envision a multibillion-dollar industry that packs murderers onto death row for decades of extremely expensive incarceration. We thought we would empty death row, not triple its population.

Each of us, independently, has concluded that the death penalty isn't working for California....

The Briggs death penalty law in California simply does not work.

Had I known then what we do today, I would have pushed for strong life sentences without the possibility of parole. I still believe that society must be protected from the most heinous criminals, and that they don't deserve to ever again be free. But I'd like to see them serve their terms with the general prison population, where they could be required to work and pay restitution into the victims' compensation fund.

There are few "do-overs" in life, especially in politics. With the death penalty, though, 34 years later I have an opportunity to set things right. The Briggs family has decided to endorse the SAFE California campaign, a fall 2012 ballot initiative that would replace the death penalty with a punishment of life without the possibility of parole. The state has another chance at real justice. We should embrace it.

Comments

If the California DP doesn't work, it's too obvious for argument that the solution is to fix the things that are screwing it up, those being expense and delay.

It works fine in Virginia, which executes more killers than California by far yet runs a healthy state budget surplus and gets the job done in seven years.

Virginia lives under and abides by the same United States Constitution as California. This means the California's problems are created by California law; there is nothing inherent in the U.S. Constitution that requires California's inordinate expense and delay. In other words, since California law is the problem, California voters have it in their hands to restore the efficacy of capital punishment. And they have Virginia's model to go by.

Posted by: Bill Otis | Feb 12, 2012 2:38:19 PM

The problem is also federal judges and a hostile judiciary.

Posted by: federalist | Feb 12, 2012 2:45:56 PM

fedealist --

I might have misstated the case when I said that Virginia lives under the same US Constitution California does. As your comment reminds me, there's the US Constitution the Ninth Circuit reads, and there's this other US Constitution everybody else reads.

Still, the problem was mostly created by California, and can mostly be solved by California. The idea that abolition is the only avenue of redress for problems with the DP is demonstrably preposterous.

Posted by: Bill Otis | Feb 12, 2012 3:14:39 PM

The people of California deserve to be severely punished by their high crime rates, the dominion of gang bangers. California is unlivable, and people are streaming out to Nevada and elsewhere.

claus, please do california a favor and stay in oklamoma or wherever it is you live california is already dealing with an overabundance of clueless nimrods like you that have been ruining the state by continually crossing the state line for years maybe florida would be more to your liking

Posted by: native | Feb 12, 2012 8:10:08 PM

California is close to Mexico in more ways than one.

Posted by: Adamakis | Feb 12, 2012 8:57:34 PM

Whites are streaming out. And blacks are being ethnically cleansed by Latin gangs, with the forbearance of Hispanic politicians. Wealthy Mexican drug cartels are buying legitimate businesses, and funneling campaign contributions to politicians who will promote their interests. These gangs have carte blanche to behead people who have offended them. Meanwhile, the lawyer led authorities drink their coffee, and chomp on donuts. There are now as many Hispanics in Cali as whites. The tipping point into Third World status is close.

I visited Cali. It looked just like New Jersey. New Jersey has far more rich areas, where they preserved some colonial charm, at least. There was nothing to see or do in Cali, just lawyer parties, where I ran into a gaggle of DP appellate specialists. They were fun to talk to. My local mall is glitzier than Rodeo Drive without the haughty attitude, a seedy, dumpy, commercial strip. I was stuck in a stand still traffic jam on the San Diego freeway, at 3 AM. No accident. No construction. Nothing. Just volume. I wanted to visit the homes of the stars, to be impressed by their imagination and glitz. Nothing. Just suburban run of the mill non-entities, some in bad taste, and priced 10 times too high.

The suggestion that California can or should follow the Virginia model reflects a lack of awareness of the mathematics involved.

The suggestion that the 9th Circuit applies a different Constitution than the rest of the country is a nonsensical GOP talking point.

In California, jury trials in capital cases usually do not conclude until somewhere around four to six years after the homicide(s). Appellate counsel is not even appointed until three to four years after imposition of the death judgment; the condemned simply sit on death row for three to four years without counsel; this is attributable to the relatively large number of California death sentences and the comparably small number of attorneys willing and able to take on capital appeals. After counsel is finally appointed, record review and record correction proceedings go forward for years. Then, briefs are filed. More years pass before oral argument takes place.

After the California Supreme Court affirms the death judgment, protracted state habeas proceedings ensue, and then the case eventually makes its way to federal court. New attorneys are appointed. Then, there are more years of review and briefing. Federal magistrate judges, whose calanders are packed, take years to issue findings and recommendations. District judges typically adopt those findings and recommendations, after further briefing. Then, it's off to the 9th for years of appellate litigation.

While the case is going through habeas review in federal court, there are often numerous trips back to state court for various procedural reasons.

The foregoing is by no means an exhaustive description of the process of death penalty litigation in California.

Curiously, a person who posts frequently at this site and who considers himself an adjunct law professor, complains that this process ought to somehow be blamed on the 9th Circuit. Unsurprisingly, this Bush-supporting "professor" suggests that California should follow the Virginia model, despite the fact that the mathematics and economics in California make following the Virginia "model" impossible; the Bush crowd proved itself utterly inept at math and economics. Remember the Bush nuts telling us the Iraq War would pay for itself?

Posted by: Calif. Capital Defense Counsel | Feb 13, 2012 11:32:22 AM

Ah the law of unintended consequences strikes again. When will we learn to study a situation throughly before we take action instead of coming at it from some knee jerk doctrinaire political position? Let's not be conservative republicans or liberal Democrats. Let's be good Californians who care about our state and who want to make it safe from violent predators. No one wants the Crips, Bloods, or MS 13 running amok. As to whites fleeing the state with the help of Mexican politicians that is just flat out stupid. If anyone believes this and says it they should be prepared to back it up with facts. Yes facts and not just nonsense that they pull out of their backside. Anyone can claim anything with out producing evidence. As you are reading this their are right wing hit squads that are comprised of killer squid roaming Sacramento. No really I read this on TV.

Posted by: Gerald | Feb 13, 2012 11:52:47 AM

Gerald....amen to that brother

Posted by: native | Feb 13, 2012 12:38:49 PM

CCDC --

I'll assume that everything you say about California and its ridiculous delays is correct. That, of course, is the whole point. None of what you describe NEEDS to happen. It is ALLOWED to happen.

In Virginia, it is NOT allowed to happen, so the death penalty works fine.

P.S. Keep on complaining about Bush. For that matter, you can start in on Reagan. Maybe Eisenhower too. I mean, why stop now?

Posted by: Bill Otis | Feb 13, 2012 3:36:56 PM

CCDC

most of your points are correct. However, if you think the 9th Circuit doesn't apply a different Constitution than the other circuit courts, explain the numerous reversals by SCOTUS. In their mind, AEDPA does not exist and they do not want to follow it.

It continually amazes me how many articles are written about California's inept DP system that say the same things over and over. Of course, nothing ever changes as well.

Posted by: DaveP | Feb 13, 2012 5:35:28 PM

DaveP --

Here's all you need to know about how seriously to take CCDC:

-- He says he's a capital defense lawyer, but does not know the legal definition of murder, having repeatedly claimed that court-ordered executions in this country are "murder."

-- He believes that when a previously convicted killer serving LWOP murders again in prison, he should receive no additional punishment.

-- He thinks it should be legal to sell heroin to an 18 year-old addict, thus hastening his (wretched) death, because that is a "non-violent consenual transaction between adults."

If a conservative took such absurd positions, the liberals here would hoot him down with the volume of a rock concert. But when a defense lawyer takes them, the liberals can't seem to find a thing to question even mildly.

Posted by: Bill Otis | Feb 13, 2012 9:39:46 PM

Gerald: Here is a non-partisan review. About 40% of the population is Hispanic, with 25 of the 40% being foreign born, with loyalties to the fatherland, Mexico. The millions leaving are white, now down to about 40% too, driven out by gangbangers, and the politicians in their pockets. These politicians are on a rampage to defund the productive male, and to transfer those assets to the lawyer in the government through make work jobs.

I've argued plenty of cases before 9th Circuit panels comprised of three conservatives. Unfortunately, the composition of the panel -- in the 9th Cir. and all the other circuits -- can be outcome determinative. (There's a law review article that compares the % of guilt-phase reversals of the Rose Bird Court and the Malcolm Lucas Court -- two chief judges of the Cal. Supreme Court; the differences are pretty startling, and appear to be based on nothing more than the composition of the court at a given time.)

AEDPA is a profoundly stupid law. Government stooges like Bill Otis love it. It purports to call upon federal courts to distinguish between reasonable and unreasonable constitutional errors. It purports to require Article III judges to ignore "reasonable" constitutional errors.

If ever there was an oxymoron --- "reasonable" constitutional error. What a joke. I can understand the resistance of some 9th Circuit judges to the abdication of the Article III adjudicatory function called for by AEDPA.

When SCOTUS reverses 9th Cir. AEDPA decisions, it typically does not do so as a matter of constitutional interpretation. Rather, it does so as a matter of statutory interpretation --- saying, e.g., even though the California Supreme Court erred, the error was not wildly irrational, so, under AEDPA, the 9th Cir. should have refused to seek to rectify the constitutional transgression at issue.

AEDPA is a piece of trash. It inhabits an odious realm similar to the war on drugs.

Posted by: Calif. Capital Defense Counsel | Feb 13, 2012 11:20:21 PM

DaveP --

I noted some of the positions CCDC has taken, saying that they illustrate how seriously he can be taken.

As if on que, CCDC strikes back with this gem: The SCOTUS is picking on Stephen Reinhardt, and the "AEDPA is a piece of trash. It inhabits an odious realm similar to the war on drugs." It's supported only by "government stooges" like yours truly.

Far out. Here's what he doesn't tell you. The AEDPA passed with overwhelming support in Congress (91-8-1 in the Senate, 293-133-7 in the House) and was signed into law by that Rush Limbaugh clone, Bill Clinton.

Very predictably, given the fury of the defense bar, AEDPA was soon put to the test in the Supreme Court. The basis of the challenge was that its key provisions -- those limiting the ability of persons to file successive habeas petitions -- violated Article I, Section 9, Clause 2 of the Constitution (the Suspension Clause). The Supreme Court held unanimously in Felker v. Turpin, 518 U.S. 651 (1997), that the AEDPA's limitations were constitutional.

"Government Stooges" 9, Excuse Factory 0.

Posted by: Bill Otis | Feb 14, 2012 4:38:28 AM

CCDC

As Bill Otis notes, AEDPA was passed convincingly and signed by Clinton. The only courts who continually try to bypass it are the 6th and the 9th. It was upheld by SCOTUS. If it is such a stupid law, how come the opponents can not repeal it? They have discussed it and failed to get any support.

There is a reason that SCOTUS singles out Reinhardt. He applies the law as he sees fit, which is totally irrational. He is a waste of judicial resources. The rest of the judges joining his opinions know when it is handed down that it is subject to scrutiny. If SCOTUS didn't have to spend so much time reversing him, they might have time for more cases that need review.

Posted by: DaveP | Feb 14, 2012 7:22:10 AM

i don't know much about AEDPA but if this is what it requires!

" It purports to call upon federal courts to distinguish between reasonable and unreasonable constitutional errors. It purports to require Article III judges to ignore "reasonable" constitutional errors."

Then it IS both a STUPID and CRIMNAL law!

there is NO SUCH THING as a "reasonable" or "UNreasonable" CONSTITUTIONAL error....there is only "CONSTUTIONAL ERROR"

Posted by: rodsmith | Feb 14, 2012 10:16:53 AM

I never said SCOTUS is picking on Reinhardt; I simply said I think SCOTUS singles out opinions he writes. (Reinhardt's recent opinion in the Prop. 8 case is terrific; Reinhardt, joined by 5 or 6 other Circuit judges, wrote a fantastic dissent from a denial of rehearing en banc in Crater v. Galaza, concerning the unconstitutionality of AEDPA.)
It is unsurprising that a government toadie like Bill Otis would claim that the key provisions of AEDPA have survived constitutional scrutiny by SCOTUS; they have not; the key provisions are those circumscribing the mode of review of state court rulings, not those pertaining to successive petitions.
Who cares how overwhelmingly AEDPA was passed by a bunch of cowardly political hacks in the Congress? Hurried through in the aftermath of the Oklahoma City bombing, it was a typical political overreaction. It was like invading Iraq because of 9/11; in other words, it is the kind of expansion of government power and contraction of individual liberty that Bill Otis supports.

Posted by: Calif. Capital Defense Counsel | Feb 14, 2012 11:37:24 AM

All you need to do to figure out the story with CCDC is read his first sentence: "I never said SCOTUS is picking on Reinhardt; I simply said I think SCOTUS singles out opinions he writes."

It's a distortion wrapped in nonsense. It's a distortion because what CCDC actually said was (emphasis added), "SCOTUS singles out ANYTHING written by Reinhardt." Notice how, in his later rendition, CCDC drops the word "anything" down the memory hole, and tells us more blandly that SCOTUS singles out "opinions he writes."

It's nonsense because, whether you go by CCDC's first thundering formulation or his pared-back second one, he's just playing word games. To say that Reinhardt's opinions are "singled out" for review is to say that Reinhardt is being picked on.

I don't know why CCDC thinks he's fooling anyone with this semantic silliness, but that's not the major point. The major point, which is more than clear by now, is that CCDC occupies a point on the political spectrum so far off the beaten path that he has carved himself a special place in Irrelevance Land.

Posted by: Bill Otis | Feb 14, 2012 2:09:32 PM

I've read some of the exchanges between CCDC and Bill Otis.

I support CCDC.

Bill Otis makes me sick.

Posted by: Silvia Voss | Feb 14, 2012 2:55:18 PM

Bill Otis

the bottom line is that CCDC and yourself are on opposite ends of the "political spectrum." That keeps this blog interesting.

Posted by: DaveP | Feb 14, 2012 4:11:58 PM

If this we didn't have a Rehnquist/Rehnquist Clerk USSC, outlier opinions from the Fourth, Fifth and Eleventh Circuits would probably get more attention. The size of the 9th Cir. alone makes it likely some more opinions will come from there. Also, a court with liberals/libertarians (Kozinksi types) also will be disfavored by the current USSC.

Thank you for doing two things CCDC doesn't: Signing your actual name and telling the truth.

Posted by: Bill Otis | Feb 14, 2012 5:52:10 PM

Silvia:

Let's meet for some red wine. Maybe, to honor (or to spite) Bill, we can do some other things that Bill would like to prosecute and imprison us for doing.

Are you anywhere near Tomales Bay?

Ciao Bella

Posted by: Calif. Capital Defense Counsel | Feb 14, 2012 6:16:21 PM

It's misleading to imply AEDPA was affirmed 9-0 by the Supreme Court. One part of it was. But the most important part of the law as currently applied -- 2254(d)(1), which creates an extremely restrictive burden for overturning a state court constitutional decision on the merits -- was established in a contested, 5-4 decision by the Court. In fact, much of the Congress and Clinton did not think that the law they passed and signed restricted federal courts to the degree that the SCOTUS ulimately said it did. For the Court to go out of its way to read a Congressional statute maximally to limit federal courts' ability to decide constitutional issues is still bizarre to me. Given the underlying Article III issues, it seems that constitutional avoidance should have required a more sensible, narrow reading of the statute.

Posted by: anon | Feb 15, 2012 8:35:59 AM

anon --

"It's misleading to imply AEDPA was affirmed 9-0 by the Supreme Court."

I did not imply that the AEDPA was affirmed 9-0 by the Supreme Court. I stated that it was. Those wishing to decide which of us is correct about this can read the case, Felker v. Turpin, for themselves. It's here: http://law.onecle.com/ussc/518/518us651.html

I would note only briefly three things. First, the Court's own syllabus states, "Rehnquist, C. J., delivered the opinion for a unanimous Court." Second, each of the concurring opinions begins by stating that the concurring Justices join the Court's opinion. Third, anon's count is wrong in any event: There were three concurring Justices (Stevens, Souter and Breyer), not four.

Posted by: Bill Otis | Feb 15, 2012 12:44:30 PM

CCDC --

I'd love to. Anything to get Bill Otis' panties in a twist.

I'm pretty sure I know who you are. I watched one of your trials a few years ago; you were brilliant.

I'll e-mail you.

Posted by: Silvia Voss | Feb 15, 2012 2:42:41 PM

Silvia Voss --

Let's see if I can interest you in an actual legal question, instead of whether you don't like me. I think we get that part.

The legal question is this: I asked CCDC what the punishment should be for an inmate already serving an LWOP sentence for a previous murder, who then murders a guard to get revenge on the guard for searching his cell for contraband.

After dodging for a while, CCDC said that the inmate should receive another LWOP sentence.

That of course is absurd. A second LWOP sentence imposed on a killer WHO'S ALREADY IN FOR LIFE is no sentence at all. CCDC'S proposed "sentence" for the second murder thus amounts making the second murder a freebie.

When anon doesn't name the case he's referring to, and the only case previously mentioned was Felker, anyone would assume that's what he's talking about. If he were talking about a different case, it would have taken him about five seconds to type in its name.

But in general, you're correct. There are lots of things I don't understand. I don't understand how someone can spend his professional life gleefully assisting violent and sadistic people. I don't undertand how a "capital defense counsel" can be ignorant of the definition of "murder." I don't understand how a person with a shred of humanity could support legalizing the sale of heroin to an addicted 18 year-old. I don't understand how anyone at all could support no additional punishment for an LWOP inmate who knifes a guard to death for revenge.

If you would care to enlighten me on these subjects, I'm all ears.

P.S. Now that you bring it up, congratulations to the defense on losing Williams v. Taylor as well as Felker v. Turpin.

Posted by: Bill Otis | Feb 15, 2012 5:05:40 PM

Clarification: I should have said in my last line that the defense lost the AEDPA portion of Williams v. Taylor. The government, not the defense, lost the other (and from the defendant's point of view, more important) part of the case.

Posted by: Bill Otis | Feb 15, 2012 5:15:34 PM

This thread began with an article/op-ed penned by one of the proponents of the current California death penalty law. After decades, he has come to realize that the death penalty in California simply does not work. The sentiments he expresses are somewhat similar to the sentiments recently expressed by the current Chief Judge of the California Supreme Court.

Those of us who deal with the California death penalty law on a daily basis also realize that the death penalty does not work in this State. It is unwieldy, it is too expensive, and it is simply not administered in an even-handed, rational manner.

Read a sampling of California death penalty cases. In many of them, the California Supreme Court finds that constitutional error(s) occurred during trial. However, the court almost always affirms death judgments, treating most constitutional errors as harmless, or concluding that the errors/defects need to be addressed in habeas proceedings rather than on direct appellate review.

The "answer" to this problem is not enforcement of statutes like AEDPA, which partially divests Article III courts of their fundamental role to safeguard individuals against constitutional transgressions. Put yourself in the place of an Article III judge on the 9th Circuit: You're confronted with a death judgment that stems from a trial in which constitutional error occurred. Under AEDPA, you're required to differentiate between "reasonable" and unreasonable constitutional errors. You're supposed to turn a blind eye to "reasonable" constitutional errors. Isn't that a farce? How, in a rational post-conviction tribunal, can a constitutional error during a murder trial be treated as not unreasonable? Why, in cases where such constitutional errors are treated as not unreasonable, do the courts taking such a position almost invariably begin their opinions by describing in detail the horrendous manner in which the condemned committed his/her murder(s), when the constitutional errors typically have nothing to do with the underlying facts?

Posted by: Calif. Capital Defense Counsel | Feb 15, 2012 9:09:11 PM

When X is not working, what you do is fix the things that are causing X not to work. The principal things causing people to say that California's death penalty "doesn't work" is that it costs too much and involves seemingly endless delays.

But none of that fell out of the sky, and none of it is even remotely required by the US Constitution, as the far better experience of other states shows.

In order to get X to "work," you look to the example of the jurisdictions in which X is, in fact, working, and learn from them.

California created the conditions that hamper its death penalty, and it can uncreate them. They are not necessary; they're merely tolerated, and the tolerance can be brought to an end.

Posted by: Bill Otis | Feb 15, 2012 11:03:04 PM

sorry bill but i have to give ccdc this one!

"Read a sampling of California death penalty cases. In many of them, the California Supreme Court finds that constitutional error(s) occurred during trial. However, the court almost always affirms death judgments, treating most constitutional errors as harmless, or concluding that the errors/defects need to be addressed in habeas proceedings rather than on direct appellate review.

The "answer" to this problem is not enforcement of statutes like AEDPA, which partially divests Article III courts of their fundamental role to safeguard individuals against constitutional transgressions. Put yourself in the place of an Article III judge on the 9th Circuit: You're confronted with a death judgment that stems from a trial in which constitutional error occurred. Under AEDPA, you're required to differentiate between "reasonable" and unreasonable constitutional errors. You're supposed to turn a blind eye to "reasonable" constitutional errors. Isn't that a farce? How, in a rational post-conviction tribunal, can a constitutional error during a murder trial be treated as not unreasonable? Why, in cases where such constitutional errors are treated as not unreasonable, do the courts taking such a position almost invariably begin their opinions by describing in detail the horrendous manner in which the condemned committed his/her murder(s), when the constitutional errors typically have nothing to do with the underlying facts?"

There is legally NO such thing as an "harmless CONSTUTIONAL error!" The ONLY exception to that would be in a case where a ruling of the USSC CHANGED the rules in mid trial! Absent that if you know you were NOT to do it and you did it or FAILED to do it. It's NOT HARMLESS and in a case where the STATE is the illresponsible party....CASE is over!

Now if it was the defense! in a case like that it would be reasonable to allow the state a 2nd shot at the apple as it were!

Posted by: rodsmith | Feb 16, 2012 12:35:16 AM

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